United States v. Poliero ( 2023 )

United States Court of Appeals
For the First Circuit
Nos. 22-1343
22-1344
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT POLIERO, a/k/a Charlie,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Barron, Chief Judge,
Selya and Gelpí, Circuit Judges.
Jeffrey W. Langholtz on brief for appellant.
Darcie N. McElwee, United States Attorney, and Benjamin M.
Block, Assistant United States Attorney, on brief for appellee.
August 30, 2023
SELYA, Circuit Judge. In these consolidated sentencing
appeals, defendant-appellant Robert Poliero claims that the
district court erred by adopting a four-level role-in-the-offense
enhancement when formulating his guideline sentencing range — an
enhancement premised on the degree of organizational
responsibility that he allegedly shouldered within the charged
conspiracy. See USSG §3B1.1(a). Because we conclude that the
record supports the factual findings underpinning the enhancement,
we affirm the appellant's sentence.
I
We briefly rehearse the relevant facts and travel of the
case. Because this appeal follows a guilty plea, "[w]e draw the
facts from the plea agreement, the change-of-plea colloquy, the
[undisputed portions of the] presentence investigation report (PSI
Report), and the transcript of the disposition hearing." United
States v. Almonte-Nuñez, 771 F.3d 84, 86 (1st Cir. 2014).
A
In July of 2018, a new drug-trafficking organization
(DTO) began operating in Maine. Joel Strother headed up the DTO.
Strother took the lead in obtaining methamphetamine from
suppliers, directing drug distribution, recruiting personnel to
assist in the transportation and sale of drugs, managing the DTO's
finances, and the like.
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Strother's leadership and control of the DTO was not to
last. In April of 2019, Strother fled from the area for
undisclosed reasons. Following his abrupt decampment, the
appellant — who was already a member of the DTO — took on more
responsibility for some of the tasks that Strother had previously
handled. Notably, the appellant assumed responsibility for
acquiring methamphetamine from suppliers. As a part of his
acquisition activities, the appellant determined the monthly
quantity of methamphetamine that the DTO would purchase. And once
he acquired the methamphetamine, the appellant supplied members of
the DTO with the drugs that they needed for further distribution
and sale.
The authorities eventually caught wind of the DTO's
activities. On May 19, 2019, law enforcement officers — acting on
information that the appellant was transporting controlled
substances — stopped his vehicle while he was driving through York,
Maine. A search of the vehicle turned up approximately 6,100 grams
of a mixture containing methamphetamine, a handgun, and three boxes
of ammunition. The appellant was arrested on the spot.
As a part of their follow-up investigation, officers
procured a warrant to search the appellant's Facebook account.
Perscrutation of the messages sent and received in that account
shed light on the role that the appellant played in the DTO
following Strother's departure. The messages showed that, on
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numerous occasions, the appellant directed other members of the
DTO to send or collect money in relation to the purchase and sale
of methamphetamine. In a representative instance, the appellant
sent $2,000 or more to an associate, directing that person to pay
$1,000 to a particular supplier, take a $100 fee for himself, and
put the balance in a safe.
B
On June 12, 2019, a federal grand jury sitting in the
District of Maine handed up an indictment charging the appellant
with a single count of possession with intent to distribute 500
grams or more of a mixture or substance containing methamphetamine.
See 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). In a subsequent
indictment, the appellant (along with sixteen other individuals)
was charged with conspiracy to distribute and to possess with
intent to distribute fifty grams or more of methamphetamine or 500
grams or more of a mixture or substance containing methamphetamine.
See id. §§ 841(a)(1), (b)(1)(A)(viii), 846. The appellant
initially maintained his innocence but later changed course: on
July 21, 2021, he entered guilty pleas to both charged counts.
The probation office then prepared the PSI Report. In
that report, the probation office concluded — as relevant here —
that the appellant was an organizer or leader of the charged
conspiracy. Thus, it recommended that a four-level role-in-the-
offense enhancement should apply in the calculation of the
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appellant's guideline sentencing range. See USSG §3B1.1(a). The
appellant objected to this enhancement, but the probation office
held firm.
After applying all the relevant enhancements and
reductions, including the role-in-the-offense enhancement, the
final version of the PSI Report set the appellant's total offense
level at forty-nine. Pursuant to the guidelines commentary,
however, the appellant's total offense level was treated as forty-
three. See USSG Ch. 5, Pt. A, cmt. n.2. Coupled with a criminal
history category of I, this yielded a guideline sentencing range
of life imprisonment.
The district court convened the disposition hearing on
May 2, 2022. In advance of the hearing, the appellant submitted
a sentencing memorandum in which he again objected to the
applicability of the role-in-the-offense enhancement. He argued
that his role in the DTO warranted at most a two-level enhancement.
See USSG §3B1.1(c). The government, in turn, argued in favor of
the four-level enhancement. The district court sided with the
government: it found that the appellant had "recruited
accomplices, instructed other participants to make sales or
purchases of methamphetamine, and directed other participants to
send or collect money for drugs." Applying the four-level
enhancement, the district court computed the appellant's total
offense level as forty-four and — pursuant to the guidelines
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commentary previously cited — reduced that level to forty-three.
Matching this offense level with the appellant's criminal history
category (I), the court determined the appellant's guideline
sentencing range to be life imprisonment.
At the end of the disposition hearing, the court imposed
a downwardly variant sentence of 216 months' imprisonment on each
count of conviction (to run concurrently). The court added that
the sentence was "completely untethered from the guidelines" and
that it "would impose the same sentence even if the applicable
sentencing guideline range would have been reduced by any or all
of the objections made by the defendant." This timely appeal
followed.
II
These are rifle-shot appeals: the appellant challenges
only the district court's application of the four-level
enhancement for his role in the offense. Generally, "[a]ppellate
review of a criminal defendant's claims of sentencing error
involves a two-step pavane." United States v. Miranda-Díaz, 942
F.3d 33, 39 (1st Cir. 2019). Under this framework, "we first
determine whether the sentence imposed is procedurally reasonable
and then determine whether it is substantively reasonable." United
States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). Here,
however, the appellant challenges only the procedural
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reasonableness of his sentence, and we cabin our analysis
accordingly.
The appellant's claim of error was preserved below and,
thus, our review is for abuse of discretion. See United States v.
Ilarraza, 963 F.3d 1, 7 (1st Cir. 2020). This mode of review is
neither monolithic nor appellant-friendly. "[U]nder its aegis, we
assay the district court's findings of fact for clear error." Id.
at 7-8. In addition, "we afford de novo review to the sentencing
court's interpretation and application of the sentencing
guidelines, and evaluate its judgment calls for abuse of
discretion." United States v. Ruiz-Huertas, 792 F.3d 223, 226
(1st Cir. 2015). "[W]e remain mindful that inquiries into a
defendant's role in the offense are 'notoriously factbound.'"
United States v Rivera, 51 F.4th 47, 51 (1st Cir. 2022) (quoting
United States v. Ventura, 353 F.3d 84, 89 (1st Cir. 2003)). As a
result, "battles over a defendant's status . . . will almost
always be won or lost in the district court." United States v.
Graciani, 61 F.3d 70, 75 (1st Cir. 1995).
Against this backdrop, we turn to the key guideline
provision. That provision directs sentencing courts to apply a
four-level enhancement if "the defendant was an organizer or leader
of a criminal activity that involved five or more participants or
was otherwise extensive." USSG §3B1.1(a). "The government bears
the burden of proving the applicability of upward role-in-the-
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offense adjustments by a preponderance of the evidence." Rivera,
51 F.4th at 51. To carry its burden, the government must adduce
evidence that satisfies both the scope and status requirements.
See id.
The scope requirement is satisfied if the evidence
"show[s] that the enterprise involved five or more participants or
was otherwise extensive." Id. That requirement need not detain
us: the record shows quite plainly that the DTO was a sprawling
organization that easily crossed the guideline provision's
numerosity threshold — and the appellant does not argue to the
contrary.
By contrast, the status requirement bears the brunt of
the appellant's attack. To satisfy that requirement, the
government must show that the appellant "acted as an organizer or
leader of the enterprise." Id. The district court found that the
government had carried the devoir of persuasion on this point, and
the appellant asserts that this finding was clearly erroneous. We
disagree.
"To qualify as an 'organizer,' 'the defendant must have
exercised some degree of control over others involved in the
commission of the offense or he must have been responsible for
organizing others for the purpose of carrying out the crime.'"
United States v. Hernández, 964 F.3d 95, 102 (1st Cir. 2020)
(quoting United States v. Carrero-Hernández, 643 F.3d 344, 350
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(1st Cir. 2011)); see United States v. Tejada-Beltran, 50 F.3d
105, 112 (1st Cir. 1995) ("One may be classified as an organizer,
though perhaps not as a leader, if he coordinates others so as to
facilitate the commission of criminal activity."). The guidelines
offer a list of factors that courts should consider in determining
whether a defendant exercised such control within a particular
organization. These factors include:
the exercise of decision making authority, the
nature of participation in the commission of
the offense, the recruitment of accomplices,
the claimed right to a larger share of the
fruits of the crime, the degree of
participation in planning or organizing the
offense, the nature and scope of the illegal
activity, and the degree of control and
authority exercised over others.
USSG §3B1.1, cmt. n.4. "This list is 'representative rather than
exhaustive,' and 'proof of each and every factor' is not necessary
to establish that a defendant acted as an organizer or leader."
Rivera, 51 F.4th at 52 (quoting Tejada-Beltran, 50 F.3d at 111).
Viewed in its entirety, the record supports the district
court's determination that the appellant acted as an organizer
within the DTO. The record reveals multiple instances in which
the appellant directed and coordinated the actions of others so as
to carry out the DTO's illegal activities and achieve its unlawful
objectives. For example, record evidence shows that the appellant
instructed others regarding how and when to send, parcel out, and
collect money in exchange for drugs. There is, moreover, evidence
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that the appellant recruited at least one other person to traffic
drugs for the DTO. Given this body of evidence, we conclude that
the district court did not commit clear error in finding that the
appellant satisfied the status requirement. It follows, then,
that the district court acted within the ambit of its discretion
in imposing the four-level "organizer" enhancement.
The appellant resists this conclusion. He insists that
certain pieces of evidence identified by the government are not,
by themselves, sufficient to show that he acted as an organizer.
Specifically, he contends that the fact that he was found in
possession of a large quantity of methamphetamine is not enough to
show that he was an organizer. But the appellant is setting up a
straw man: there is nothing in the record suggesting that the
district court imposed the role-in-the-offense enhancement based
on the singular fact that the appellant possessed a large quantity
of illegal drugs. The contrary is true. The court's imposition
of the enhancement rested on a holistic appraisal of the facts in
the record that showed, with conspicuous clarity, the appellant's
exercise of control over other actors within the DTO.
There is one loose end. The appellant seems to suggest that
— even if he did exercise some degree of control over others — he did not
exercise such control for a sufficiently long period of time to be
considered an organizer. This argument is poorly developed: the
appellant cites no authority for the proposition that an individual must
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exercise control over others for some particular interval in order to be
classified as an organizer for purposes of section 3B1.1. Even were we
to overlook the likely waiver that attends this suggestion, see United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to
in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived."), our case law counsels against
adoption of any such temporal requirement, cf. Hernández, 964 F.3d at
102-03 (concluding that evidence showing that defendant coordinated
activities of another individual on one occasion sufficed to justify
application of leadership enhancement). Thus, we reject the appellant's
suggestion that his exercise of control was of an insufficient duration
to ground application of the four-level role-in-the-offense enhancement.
III
We need go no further.1 For the reasons elucidated above, the
challenged sentence is
Affirmed.
1 Inasmuch as we have upheld the role-in-the-offense
enhancement, we need not reach the government's alternative
argument that the sentence may stand — notwithstanding the
fate of the enhancement — because the district court explicitly
untethered it from the guidelines. See, e.g., United States
v. Ouellette, 985 F.3d 107, 110 (1st Cir. 2021) (holding that
where district court would have imposed same sentence
regardless of guidelines calculations, any error in guideline
calculations is harmless); United States v. Tavares, 705 F.3d
4, 26-27 (1st Cir. 2013) ("An error is harmless if it 'did not
affect the district court's selection of the sentence
imposed.'" (quoting Williams v. United States, 503 U.S. 193,
203 (1992))); see also Rivera, 51 F.4th at 53 (collecting
cases).
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